81 Mass. 413 | Mass. | 1860
The instructions of the court of common pleas, applying the rule of the criminal law that “ the jury must be satisfied beyond any reasonable doubt,” before they would be authorized to find a verdict of guilty, to the case of a plaintiff in a civil action brought to recover the contents of a promissory note, were, we think, erroneous. It is true that the
The error of the instructions was in assuming that this court had sanctioned the exceptions to the rule that seem to be stated in 2 Greenl. Ev. § 426, and that this case was properly embraced in the class of cases there referred to. It was not our purpose, in stating the opinion of this court in Schmidt v. New York Union Mutual Fire Ins. Co. 1 Gray, 529, to sanction those exceptions at all, or to say that in any civil action the jury were not to decide by the preponderance of the proof or the weight of evidence. It was said that “ if there be any class of civil cases, in which the instruction usually given in criminal cases might be required, it would be those where the defendant has in a special plea in justification directly charged upon the plaintiff a crime,” &c., and the case of an action of tort for slander was referred to as a case to which Mr. Greenleaf would apply the distinction. But it was further stated in the same opinion, that however it might be in such a case, “ the principle does not apply to an action of assumpsit, or contract, as it is termed in the new practice act.”
The present cases are actions of contract, and therefore directly fall within the rule just stated, that they are to be decided upon a preponderance of evidence, sufficient reasonably to satisfy the minds of the jury. We are not disposed to
As to the rulings of the court of common pleas upon the other questions raised we think they were sufficiently favorable to the defendant, and furnish no ground for exceptions.
Exceptions sustained.
A second trial was had in the court of common pleas' at October term 1858, before Bishop, J., to whose rulings the defendants alleged exceptions, which were argued at September term 1859 by Sumner & H. L. Dawes, for the defendants, and by J. E. Field for the plaintiffs, and are stated in the opinion.
One fact stated in these cases was not much relied on, and yet it may be proper briefly to notice it. Each action is brought to recover the amount due on one promissory-note, and the interest on another. In regard to the latter, a note not yet due, the plaintiff was asked, in cross-examination, whether the note had not been sold to a third person, and he answered that it had. The term “ sold ” is equivocal. If these notes had been indorsed and delivered over to third parties, and the indorsements filled up, it might have been a good ground of defence. But if the plaintiffs, as holders of the notes, had merely agreed to indorse them at some future time, or assigned them, without indorsements, as choses in action, then the legal title still remained in the promisees, the production of the notes by the plaintiffs, payable to themselves, constituted apparently a good legal title, and the actions could be maintained in the names of the promisees, though other parties had acquired a beneficial interest in the proceeds when recovered. The fact that actions have been brought on these by other parties cannot
The only point argued in this case is, whether the actions were prematurely brought. The notes, the principal of which was sued for, were in terms due April 1st 1855, and, by the statute allowing days of grace on all promissory notes payable on time, the 4th of April was the last day of grace. Rev. Sts. c. 33, § 5. Without any demand made on either of the notes by the respective holders, actions were brought on them against the molters, and attachments thereon were made on the same day.
The court are of opinion that these actions were brought too soon, and that they cannot be maintained. By the general rule of the common law, on an obligation to pay money on a day certain, as debt for rent, debt due on bond or specialty, or otherwise, the party bound has the whole of the last day in which to pay it, and his obligation is not broken so as to subject him to an action for a breach till the whole day has expired. To this rule negotiable securities, as bills of exchange and promissory notes, payable with grace, are an exception. Whether they are entitled to grace by usage, by the terms of the instrument, or by statute, in this respect makes no difference. Leftley v. Mills, 4 T. R. 174. Whitwell v. Brigham, 19 Pick. 122.
The question then is as to the nature, extent and limits of such exception. We think that exception is, that notes and bills entitled to grace are payable on demand at any reasonable time and place on the last day of grace, and, if not paid on such demand, the note is dishonored, the contract is broken, and an action may be forthwith brought against the promisor or acceptor, and on due notice given, or due diligence used to give notice, action may be brought against the indorser.
This point has been so largely discussed, and the authorities, especially those of Massachusetts, have been so fully reviewed, in the case of Staples v. Franklin Bank, 1 Met. 43, that it seems unnecessary to do more than refer to that case. The only possible room to raise a doubt is, whether if a note be payable on demand, the action may not be commenced against the principal debtor, without a special demand, on the
On the subject of interest upon the note not due, on referring to the record, it does not furnish the means of deciding whether any interest was due and payable or not when the action was brought. The provision for interest annually would seem to be for interest payable at the expiration of each year. But the declarations, though they purport to annex copies of the notes, do not state their dates at all in the case of Philander Gordon, and only one of them in the case of George A. Gordon, and that is March 8th 1853. This may be set right in case of another trial. Exceptions sustained.
At a subsequent trial in the superior court, it appeared that no demand was made on the 4th of April 1855, the last day of grace, on the first note sued on in each case. The plaintiffs’ testimony was, that on the first day of April, George A. Gordon, the plaintiff in the second action, asked the defendant Parmelee if he was going to pay those notes, and Parmelee said he should not pay either of them, and George might say so to Philander, the plaintiff in the first action, and the plaintiffs might sue on them as soon as they pleased; that George told Philander on the same day, and they immediately called together on one of the other defendants, and asked him why he would not pay the notes, and he said that Parmelee had forbidden him to do so; and that either two or three days afterwards they left the notes with an attorney to be put in suit.
No objection was taken at the trial to the answer. The plaintiff contended that, upon the evidence, the actions might be brought on the 4th of April without a demand on that day. But Rockwell, J. ruled that each action was prematurely commenced, so far as the principal sum on each of the first notes was concerned, and that the evidence as to the transactions on a previous day was incompetent, though the action might be maintained for the interest. Verdicts were returned accordingly
These actions were commenced on the last day of grace to which the maker was entitled on the first note set forth in each declaration. If a suit is prematurely instituted, that is, if the writ is sued out and served before the cause of action accrues, the defendant may take advantage of that objection if the fact becomes apparent upon the trial, although it is not stated in his answer as a ground of defence. In the case of Staples v. Franklin Bank, 1 Met. 43, it was determined, upon much deliberation and after an elaborate review of numerous authorities bearing upon the question, that the contract of a maker of a promissory note is broken by a neglect or refusal to pay it on demand within reasonable time on the last day of grace, and that the holder may then have his remedy by action against him. In the present cases, therefore, it depended upon the state of the proof upon the trial whether each action could or could not be maintained. If it was shown that a demand of payment had been previously made within reasonable time on the day when the suit was commenced, or that that had taken place between the parties which was equivalent to a demand and refusal, the plaintiff would have been entitled, if no sufficient defence were otherwise interposed, to recover the contents of the note; but in the absence of such proof it would be apparent that his alleged cause of action had not accrued when the suit was commenced, and consequently that it could not be maintained, because it was prematurely brought. Upon this question there is no just objection to the ruling of the court.
But the maker of a promissory note, who is not liable to have any suit commenced against him on the last day of grace unless a demand of payment has been previously made upon him within reasonable time on that day, may waive the right of demand, and then he will be exposed to the same liability as if a demand had been made. In the case of Mechanics’ Bank v. Merchants’ Bank, 6 Met. 23, it is said by the court that undoubtedly parties to negotiable notes may waive demand and notice, and as a modification of that power may agree to qualified modes of
Such waiver by the maker does not entitle the holder to commence his action at any hour on the last day of grace earlier than he could if he had made a legal and sufficient demand of payment; that is, not before the lapse of the reasonable time within which the demand of payment on that day might properly be made; because any agreement which would accelerate the time of legal payment, or, what is the same thing, the liability to an action for nonpayment, would be a change of the contract, which could be effected only in such form and upon such consideration as would be sufficient to constitute a substantive contract. In short, when there has been such waiver by the maker, the rights and liabilities of the parties are just the same as if the demand of payment had been seasonably and properly made in such manner and at such time as would render the maker liable to a suit on the last day of grace.
Applying this principle to the ruling of the court in relation to the evidence which was produced upon the trial by the plaintiffs, it is obvious that it was erroneous. The evidence was competent, and should have been submitted to the jury to determine whether it proved that the defendants waived their right of demand of payment on the last day of grace as a preliminary to the right of the plaintiffs to commence their suits on that day. If such waiver should be proved, the actions may be maintained. Exceptions sustained.